Effective Date: May 18, 2023
Please read these terms of service (“Terms of Service”) (this “Agreement”) carefully. This Agreement is between you and Seso, Inc. (“Seso,” “we,” “us,” or “our”), each a “Party,” and collectively, “the Parties,” and governs your access to and use of our SaaS Services. You may enter into this Agreement on behalf of yourself or on behalf of a legal entity. If you enter into this Agreement on behalf of a legal entity, you represent that you are a duly authorized representative with the authority to bind that legal entity to this Agreement. All references to “you” and “your” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting. Capitalized terms in this Agreement will have definitions as set forth in the applicable section where they are defined, or in Section 15 below. We will provide the SaaS Services through Seso, Inc..You may only use the SaaS Services in accordance with the terms and subject to the conditions of this Agreement.
READ THIS AGREEMENT CAREFULLY, AS IT PROVIDES, AMONG OTHER THINGS: (i) in Sections 2 and 7, that certain terms and conditions apply with respect to fees; (ii) in Section 8, that Seso may make modifications, deletions, and additions to these Terms of Service; and (iii) in Section 10, that you release Seso from, and waive your right to recover from Seso, certain damages. You acknowledge that you will only use the SaaS Services if you agree to be legally bound by all terms and conditions herein. Your acceptance of this Agreement creates a legally binding contract between you and Seso.
1.1 Access and Use. Subject to your compliance with the terms and conditions contained in this Agreement, Seso hereby grants to you, during the Agreement Term, a limited, non-exclusive, non-transferable right for your Users to access and use the SaaS Services under the applicable Order Form in accordance with the Documentation in each case solely for your internal business purposes and not for the benefit of any other person or entity. You agree that your purchase of the SaaS Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Seso regarding any future functionality or features.
1.2 Documentation. Subject to your compliance with the terms and conditions contained in this Agreement, Seso hereby grants you a non-exclusive, non-sublicensable, nontransferable license to use the Documentation during the Agreement Term solely for your internal business purposes in connection with your use of the SaaS Services.
1.3 Restrictions. You must not, directly or indirectly, permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the SaaS Services; (b) modify, translate, or create derivative works based on any element of the SaaS Services or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the SaaS Services; (d) use the SaaS Services for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of yourself; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the SaaS Services without Seso’s prior written consent; (g) use the SaaS Services for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the SaaS Services; (i) attempt to gain unauthorized access to the SaaS Services or their related systems or networks; or (j) use the SaaS Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law.
1.4 Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to you, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Seso.
2.1 Order Form. You may order the Services through an order form approved and authorized by Seso. Any order for the Services made pursuant to an Order Form is subject to the terms of this Agreement. An Order Form may contain additional or different terms, conditions, and information regarding the Services you are ordering as authorized and agreed to by Seso. In the event of any conflict or inconsistency between this Agreement and any Order Form authorized and agreed to by Seso, the applicable Order Form controls and governs over this Agreement, to the extent necessary to resolve the particular conflict or inconsistency only. Seso will provide the Services set forth in your Order Form and standard updates to the Services that we make generally available at no additional cost to customers during the applicable Agreement Term. Seso may, in our sole discretion, (i) discontinue the Services, or (ii) modify the features or functionality of the SaaS Services.
2.2 Outstanding Balance; Late Payment. Without limiting our rights in this Agreement, you acknowledge that Seso is not required to provide any new Services set forth in an Order Form until all outstanding balances due and owing for existing Services are paid in full.
CUSTOMER OBLIGATIONS
3.1 Acceptable Uses. You are solely responsible for your actions and the actions of your Users while using the SaaS Services. You agree to abide by all local, state, national, and international laws and regulations applicable to your use of the SaaS Services, and you may not use the SaaS Services for illegal, fraudulent, unethical or inappropriate purposes.
3.2 User Accounts and Passwords. Seso will issue to you user logins and passwords for each of your Users authorized to access and use the SaaS Services. You must ensure that each of your Users are responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. You agree to immediately notify Seso of any unauthorized use of any account or login and password issued to your Users, or any other breach of security known to you.. You are responsible for all use of your User accounts, and you are responsible for compliance by each User with the terms of this Agreement.
3.3 No Circumvention of Security. Neither you nor any User may circumvent or otherwise interfere with any user authentication or security of the SaaS Services.
3.4. Customer Data and Account Settings. The SaaS Services allow you and Users to submit, store and delete Customer Data. In addition, the SaaS Services allow you and Users to manage and edit certain information through their account settings page.
3.5 Efficient Equipment: You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You are also responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without your knowledge or consent.
3.6 Verification of Data:You agree that by submitting any Customer Data to Seso through our platform or otherwise, you: (i) have reviewed and approved all such Customer Data, (ii) represent and warrant to Seso that the Customer Data is accurate and that no Customer Data will lead Seso to violate any applicable laws or regulations, (iii) waive and release any claim against Seso arising out of any errors in such Customer Data, and (iv) understand and acknowledge that Seso may rely upon the Customer Data provided and that Seso will not be responsible for errors that result from our reliance on the Customer Data.
4.1 Availability. Subject to the terms and conditions of this Agreement, Seso will use commercially reasonable efforts to make the SaaS Services available at least 99% of the time 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Seso will use commercially reasonable efforts to provide at least 24 hours advance notice), and (b) routine maintenance times and as otherwise specified by Seso, and (c) any unavailability caused by the circumstances described in Section 14.10. You are required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Fixes”) necessary for the proper function and security of the SaaS Services, as such Fixes are generally released by Seso. Certain enhancements to the SaaS Services made generally available at no cost to all subscribing customers during the Subscription Term will be made available to you at no additional charge. However, the availability of some new enhancements to the SaaS Services may require the payment of additional fees, and Seso will determine at our sole discretion whether access to any other such new enhancements will require an additional fee.
.4.2 Updates. Seso will provide you with all Maintenance Releases that we may, in our sole discretion, make generally available to our licensees at no additional charge. You are required to accept all Maintenance Releases. All Maintenance Releases provided by Seso to you are deemed licensed to Customer in Section 1.1. You do not have any right hereunder to receive any New Versions that Supplier may, in our sole discretion, release from time-to-time.
5.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information. Confidential Information of Seso will include, without limitation, the SaaS Services and the Documentation. Your Confidential Information will include, without limitation, Customer Data. Confidential Information also includes all summaries and abstracts of Confidential Information.
5.2 Non-Disclosure. Each Party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other Party. Subject to Section 6.4 and Section 6.5, the Receiving Party must, at all times, both during the Subscription Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it, and the Receiving Party must not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section. Subject to Section 5.3 and Section 5.4, the Receiving Party must not disclose or sell Confidential Information of the Disclosing Party to any person or entity other than disclosing to its officers, employees and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
5.3 Exceptions to Confidential Information. The obligations set forth in Section 5.2 will not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party must (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
5.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
6.1 SaaS Services. As between Seso and you, all right, title and interest in the SaaS Services and any other of our materials furnished or made available hereunder, and all modifications and enhancements thereof, and Feedback (as defined in Section 6.2), including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Seso or our licensors and providers, as applicable. Other than as expressly set forth in this Agreement, no license or other intellectual property rights of any kind are granted to you.
6.2 Feedback. You hereby do and will irrevocably assign to Seso all evaluations, ideas, feedback and suggestions made by you to Seso regarding our SaaS Services (collectively, “Feedback”) and all intellectual property rights in the Feedback.
6.3 Our Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Seso, whether solely or jointly, and all intellectual property rights therein, will remain the sole and exclusive property of Seso.
6.4 Data. You hereby grant Seso a non-exclusive, non-sublicensable (except as set forth in the following sentence), irrevocable, worldwide and royalty-free license, under the applicable intellectual property rights, to store, process and use Customer Data, including any personal information, for the purposes of providing and improving the SaaS Services. We may sublicense the foregoing rights to any third party that we engage to provide any aspect of the SaaS Services. We may, unless prohibited by applicable law, de-identify and/or anonymize Customer Data and any other data and information relating to your use of the SaaS Services (with the resulting de-identified or anonymized data and information being referred to herein as “De-identified Data”) and aggregate such De-identified Data, including without limitation aggregation with other information received by Seso from our other customers and from other data sources (collectively, “Aggregated Data”) for the purpose of providing the SaaS Services and enhancing the features, functions, and performance of the SaaS Services. All De-identified Data and Aggregated Data will be owned solely and exclusively by Seso. You further acknowledge and agree that De-identified Data and Aggregated Data cease to be personal information or your Confidential Information, and we may, during and after the term of the Agreement, use, reproduce, disclose, distribute, sell and otherwise commercialize such De-identified Data and Aggregated Data.
6.5 Contacting Individual Workers. You acknowledge and agree that we may use Customer Data provided by or on behalf of you to contact and work with individual Workers whose contact information is submitted to the SaaS Services or is otherwise disclosed to Seso. We will not contact your Workers unless either (i) related to the Visa process or (ii) such Worker has accessed our SaaS Services on his or her own.
6.6 Third Party Personal Data. If you provide personal information or personal data of any third party to Seso, you represent and warrant to us that you have obtained the necessary consent to do so. You also warrant that the third party has not communicated to you that they wish to opt out of receiving communication from you or Seso.
6.7 Data Retention. We will only retain Customer Data for as long as Services are provided to you in accordance with this Agreement. Following expiration or termination of the Agreement, we will delete all Customer Data in our possession as provided in the Agreement except to the extent we are required by applicable law to retain some or all of the Customer Data (in which case we will implement reasonable measures to prevent the Customer Data from any further processing).
6.8 Data Destruction. We will destroy or purge Customer Data in a manner consistent with state policy and federal regulations for destruction of private or confidential data and in such a way so that the Customer Data is unusable and irrecoverable. For physical documents, we will destroy all hard copy Customer Data by shredding to effect 5/16 inch wide or smaller strips and then either incinerating or pulping the shredded material.
6.9 Backups. As a part of the SaaS Services, Seso will maintain under this Agreement consistent, regular and validated backups offsite of the Customer Data. Backups occur and will be maintained pursuant to our internal backup policies. Upon written request, we will make available to you a copy of our current backup policies and procedures.
7.1 Fees. You agree to pay all fees specified in an Order Form using one of the payment methods Seso supports. Except as otherwise specified in this Agreement or in an Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and fees paid are non-refundable. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
7.2 Invoices and Payment. Except as otherwise specified in this Agreement or in an Order Form, all fees will be invoiced 120 days in advance. Except as otherwise set forth in an Order Form, Customer agrees to pay all invoiced amounts within 30 calendar days of the invoice date.
7.3 Overdue Charges. If we do not receive fees by the due date, then at our discretion, such charges may accrue late interest at the rate of 5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
7.4 Promotional Rates and Discounts. Prices specified in an Order Form may include a promotional rate, discount, sale, or special offer, which may be temporary and may expire (i) per the terms of the offer, or (ii) upon the commencement of a Renewal Term. The expiration of the discount or promotional pricing may expire without additional notice to you, unless specified in an Order Form or as required by applicable Law. Seso reserves the right to discontinue or modify any promotion, discount, sale, or special offer in our sole discretion.
7.5 Suspension of SaaS Services. If any amounts owed by you are ten (10) or more days overdue, we may, without limiting our other rights and remedies, suspend your and your Users’ access to the SaaS Services until such amounts are paid in full.
7.6 Pricing Updates. Seso reserves the right to modify and adjust the prices for our Services and Software at any time. Such price changes may be implemented without prior notice. By continuing to use our Services and Software after a price change, you acknowledge and agree to the revised pricing.
Notwithstanding the above, any prices agreed upon within a specific Order Form will be honored for the duration specified in that Order Form. However, any subsequent or new Order Forms issued by Seso may reflect the updated and potentially higher prices. It is your responsibility to review and agree to the pricing terms outlined in each Order Form before proceeding with the purchase of our Services and Software.
7.7 Taxes. “Taxes'' means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a Party’s net income. Fees and charges imposed under this Agreement do not include Taxes except as otherwise provided herein. You are responsible for all of such Taxes. If, however, Seso has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this Section 7.7, you must promptly pay the Taxes invoiced by Seso unless you have furnished us with valid tax exemption documentation regarding such Taxes. You must comply with all applicable tax laws and regulations.
8.1 General Changes. We may make modifications, deletions, and additions to this Agreement (“Changes”) from time to time in accordance with this Section 8.1. Changes to these Terms of Service will be posted here, which you should regularly check for the most recent version and also save the most up to date version in your files. When Changes are made, Seso will indicate the effective date of the Changes at the top of the Terms of Service located here. Changes to this Agreement do not create a renewed opportunity to opt out of arbitration (if applicable). If you continue to use the Services after the effective date of the Changes, then you agree to the revised terms and conditions. In some instances, we may notify you of a Change and also may request express confirmation of your consent to a Change. If a Change requires a specific notice pursuant to applicable Law, we will provide you with such notice in the manner prescribed by applicable Law, together with any required notification of your rights.
8.2 Other Changes. You agree that Seso may modify, delete, and make additions to our guides, statements, policies, and notices, with or without notice to you, and for similar guides, statements, policies, and notices applicable to your use of the Services by posting an updated version on the applicable webpage.
8.3 Change Notifications. It is your responsibility to keep your email address up to date for any notices that Seso may send to you from time to time and to regularly review this Agreement by reviewing these Terms of Service.
9.1 Mutual Representations and Warranties. Each Party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement must not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
9.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE SAAS SERVICES ARE PROVIDED ON AN AS-IS BASIS. YOUR USE OF THE SAAS SERVICES IS AT YOUR OWN RISK. SESO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY SESO IN SECTION 9 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE SAAS SERVICES IS LICENSED AND NOT SOLD.
NO AGENT OF SESO IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SESO AS SET FORTH HEREIN. SESO DOES NOT WARRANT THAT: (A) THE USE OF THE SAAS SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B)THE SAAS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SAAS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SAAS SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SAAS SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SAAS SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SAAS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SESO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
9.1 General. During Agreement Term, Seso, at our expense, will defend you and your officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the SaaS Services infringes any copyright or misappropriates any trade secret and will pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Seso’s obligations under this Section are conditioned upon (i) Seso being promptly notified in writing of any claim under this Section, (ii) Seso having the sole and exclusive right to control the defense and settlement of the claim, and (iii) you providing all reasonable assistance (at our expense and reasonable request) in the defense of such claim. In no event will you settle any claim without Seso’s prior written approval. You may, at your own expense, engage separate counsel to advise you regarding a Third-Party Claim and to participate in the defense of the claim, subject to Seso’s right to control the defense and settlement.
9.2 Mitigation. If any claim which Seso is obligated to defend has occurred, or in Seso’s determination is likely to occur, we may, in our sole discretion and at our option and expense (i) obtain for you the right to use the SaaS Services, (ii) substitute a functionality equivalent, non-infringing replacement for such the SaaS Services, (iii) modify SaaS Services to make it non-infringing and functionally equivalent, or (iv) terminate this Agreement and refund to you on a pro-rated basis any pre-paid and unused fees for the SaaS Services.
9.3 Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) your use of infringing Customer Data, (ii) use of the SaaS Services in combination with any software, hardware, network or system not supplied by Seso where the alleged infringement relates to such combination, (iii) any modification or alteration of the SaaS Services other than by Seso, (iv) your continued use of the SaaS Services after we notify you to discontinue use because of an infringement claim, or (v) your violation of applicable law.
9.4 Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SESO WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SAAS SERVICES OR OTHERWISE, AND YOUHEREBY EXPRESSLY WAIVE ANY OTHER LIABILITIES OR OBLIGATIONS OF SESO WITH RESPECT THERETO.
9.5 Customer Indemnity. You must defend Seso and our licensors and their respective officers, directors and employees (“Supplier Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data (and the exercise by Seso of the rights granted herein with respect there to) infringes, misappropriates or violates any third party’s intellectual property rights or other rights; (b) your use or alleged use of the SaaS Services other than as permitted under this Agreement; or (c) arising from the occurrence of any of the exclusions set forth in Section 9.1. You must pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Your obligations under this Section 9.5 are conditioned upon (x) you being promptly notified in writing of any claim under this Section 9.5, (y) you having the sole and exclusive right to control the defense and settlement of the claim, and (z) Seso providing all reasonable assistance (at your expense and reasonable request) in the defense of such claim. In no event will Seso settle any claim without your prior written approval. Seso may, at our own expense, engage separate counsel to advise us regarding a Third-Party Claim and to participate in the defense of the claim, subject to your right to control the defense and settlement.
10.1 No Consequential Damages. NEITHER SESO NOR OUR LICENSORS OR SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SESO OR OUR LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SAAS SERVICES OR THE RESULTS THEREOF. SESO WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SAAS SERVICES.
10.2 Limits on Liability. NEITHER SESO NOR OUR LICENSORS OR SUPPLIERS WILL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE PERIOD OF 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
10.3 Essential Purpose. YOU ACKNOWLEDGE THAT THE TERMS IN THIS SECTION 10 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND WILL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
11.1 Privacy Policy. You consent to and agree to our Privacy Policy and you are on notice of and acknowledge that our collection, sharing, and processing (which may include organizing, structuring, storing, using, or disclosing) of your personal data will be subject to our Privacy Policy.
13.1 Term. The term of this Agreement commences on the Order Effective Date and continues until all Order Forms have expired or have been terminated as allowed under this Agreement. Your Agreement Term to SaaS Services is set forth in the applicable Order Form.
13.2 Termination for Cause. A Party may terminate this Agreement (and all Order Forms) or a specific Order Form upon written notice to the other Party in the event the other Party commits a material breach of this Agreement and does not remedy such breach within 30 days after receipt of written notice of such breach.
13.3 Effects of Termination. Upon any expiration or termination of an Order Form, (a) your use of and access to our SaaS Services under that Order Form will cease, and (b) all fees and other amounts owed to Seso under that Order Form will be immediately due and payable by you. Any termination of this Agreement also terminates all Order Forms. ANY DATA, INCLUDING, WITHOUT LIMITATION, CUSTOMER DATA, THAT YOU OR ANY USER ENTERS INTO THE SAAS SERVICES, INCLUDING PAYROLL SERVICES, DURING THE AGREEMENT TERM WILL BE DELETED AFTER THE EXPIRATION OR TERMINATION OF THIS AGREEMENT UNLESS YOU RENEW THE AGREEMENT TERM OR EXPORT SUCH DATA BEFORE THE END OF THE AGREEMENT TERM. You are solely responsible for exporting such Customer Data from the SaaS Services, including the Payroll Services, prior to expiration or termination of the Agreement Term.
13.4 Survival. The termination or expiration of this Agreement for any reason will not affect a Party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the payment terms and the provisions concerning ownership, confidentiality, limitation of liability, indemnity and the warranty disclaimers).
14.1 Notices. Seso may give notice to you by means of a general notice through the SaaS Services interface, electronic mail to your email address on record with us, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to your address on record with Seso. You may give notice to Seso by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Seso at 548 Market St. PMB 40370, San Francisco, California 94104-5401, Attention: Legal Affairs. Notice shall be deemed to have been given upon receipt or, if earlier, two business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
14.2 Governing Law. This Agreement and the rights and obligations of the Parties to and under this Agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws, rules or principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The Parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (“UCITA”), or any version thereof, adopted by any state of the United States in any form. Any disputes arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance or termination, or any dispute between the Parties arising from the Parties’ relationship created by this Agreement, shall be heard in the state and federal courts located in San Francisco County, California, and the Parties hereby consent to exclusive jurisdiction and venue in such courts.
14.3 Export. The SaaS Services utilizes software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the SaaS Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the SaaS Services, You represent and warrant that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The SaaS Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Seso and our licensors make no representation that the SaaS Services is appropriate or available for use in other locations.
14.4 Waiver. No term or provision of this Agreement shall be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.
14.5 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
14.6 Assignment. You may not assign your rights or delegate your obligations under this Agreement to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving you), without the prior written consent of Seso, such consent not to be unreasonably withheld, and subject to you paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this Section 14.6 shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the Parties and their successors and permitted assigns.
14.7 Relationship of the Parties. Seso is an independent contractor to you. There is no relationship of agency (notwithstanding petition filing services), partnership, joint venture, employment, or franchise between the Parties. Neither Party has the authority to bind the other or to incur any obligation on its behalf.
14.8 Attorneys’ Fees. In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
14.9 Force Majeure. Except for your payment obligations, neither Party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, disease or viral outbreak or epidemic or pandemic, acts of God or the public enemy; epidemics or pandemics; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement); or any other event beyond the reasonable control of the Party whose performance is to be excused.
14.10 Entire Agreement. This Agreement, including all exhibits, all Order Forms and all documents referenced herein, constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. If there’s a direct conflict between provisions in this Agreement, the conflict will be resolved by giving precedence to the provision as it appears in the highest-ranked document in the following order: (a) the relevant Order Form and (b) the body of this Agreement.
The following definitions apply to this Agreement.
15.1 “Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of you or any User and received and analyzed by the SaaS Services.
15.2 “Documentation” means printed, paper, electronic or online user instructions and help files made available by Seso to you for use with the SaaS Services, as may be updated from time to time by Seso.
15.3 “Employment Information” means Customer Data that is employment related data, information, content, records and files including employee roles, employment status, employment duration, POS proficiency, time & attendance, any data used to compute employee engagement scores, and other information specified by Seso in the SaaS Services from time to time that is loaded, entered into, transmitted to, or made available to the SaaS Services.
15.4 “Agreement Term” means the term for a Service as specified in an Order Form.
15.5 “Law” means all U.S. or non-U.S. national, regional, state, provincial or local law, statute, rule, regulation, ordinance, administrative ruling, judgment, decree, order, directive, or policy applicable to Seso’s provision of and your use of the SaaS Services.
15.6 “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the SaaS Services or the Documentation that Seso may provide to you from time-to-time during the Agreement Term, but excluding any New Version.
15.7 “New Version” means any new version of the SaaS Services or Documentation that Seso may from time-to-time introduce and market generally as a distinct licensed product (as may be indicated by Seso’s designation of a new version number), and which Seso may make available to you at an additional cost under a new Order Form or separate written agreement.
15.8 “Order Form” means any ordering document executed by the Parties that references and incorporates this Agreement and sets forth the particular SaaS Services to be provided pursuant to this Agreement, the fees therefore and any additional terms applicable thereto.
15.9 “Proprietary Rights” means any copyright, patent, trade secret, know-how, trademark, servicemark, trade name, rights of publicity, or other intellectual property or proprietary rights.
15.10 “SaaS Services” or “Services” means (i) Seso’s proprietary software-as-a-service platform and all other services and solutions made available by Seso to you as identified in the relevant Order Form, (ii) and (ii) any free services provided by Seso to you, in our sole discretion, in connection with this Agreement.
15.11 “Users” means your employees and consultants (a) who are authorized by you to access and use the SaaS Services and (b) who have been supplied user identifications and passwords for such purpose by you (or by Seso at your request).
15.12 “Worker” means (i) an individual assigned to an H-2A contract pursuant to the SaaS Services and who is employed or intends to be employed by you under a U.S. Department of Labor-approved Application for Temporary Employment Certification in a particular occupation and/or area, and (ii) those persons whose engagements, terms of employment, promotions and dismissals are set, determined and governed by you. The word “worker” or “workers” where used hereinafter will mean any person or persons defined and covered by this Agreement.
